Free Sentencing Memorandum - District Court of Arizona - Arizona

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Michael D. Kimerer, #002492 Amy L. Nguyen, #023383 KIMERER & DERRICK, P.C. 221 East Indianola Avenue Phoenix, AZ 85012 Telephone: 602-279-5900 Facsimile: 602-264-5566 Attorneys for Defendant Schroeder

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) BRADLEY SCHROEDER, ) ) Defendant. ) ____________________________________) No. CR-04-00718-001-PHX-DKD SUPPLEMENTAL SENTENCING MEMORANDUM Resentencing: 1/12/06 at 2:00 p.m. (Before the Honorable David K. Duncan)

Defendant, Bradley Schroeder, through undersigned counsel, respectfully submits this Supplemental Sentencing Memorandum to assist this Court during the Resentencing Hearing scheduled on January 12, 2006, at 2:00 p.m. Additionally, Mr. Schroeder incorporates by reference the law and argument included in Defendant's Response to Plaintiff's Memorandum and Motion for Remand, filed with this Court on May 4, 2005. RESPECTFULLY SUBMITTED this 10th day of January, 2006. KIMERER & DERRICK, P.C.

______________________________________ Michael D. Kimerer Amy L. Nguyen Attorneys for Defendant Schroeder

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SENTENCING MEMORANDUM FACTUAL AND PROCEDURAL BACKGROUND On August 4, 2004, Mr. Schroeder pled guilty to two misdemeanor counts of willful failure to file a tax return, in violation of 26 U.S.C. § 7203. Specifically, Mr. Schroeder admitted to receiving a gross income in excess of $6,800 during 1997, and a gross income in excess of

6 7 8 9 10 11 12 13 14 15 16 (2004), and United States v. Ameline ("Ameline I"), 376 F. 3d 967 (9th Cir. 2004). At the time of 17 18 19 20 21 22 effect at the time and, accordingly, only relied upon facts admitted by Mr. Schroeder during the 23 24 25 26 27 28 Change of Plea hearing in determining an appropriate sentence. Mr. Schroeder was sentenced to the maximum probation term of three years and ordered to pay the maximum fine of $5,000. The Government filed a Notice of Appeal on November 24, 2004, indicating its intention to appeal Mr. Schroeder's sentence. Shortly thereafter, the Supreme Court issued its opinion in Mr. Schroeder's sentencing, the issue of whether Blakely applied to the Federal Sentencing Guidelines was pending before the United States Supreme Court in the consolidated case of United States v. Booker/Fanfan ("Booker"), 543 U.S. 220, 125 S. Ct. 738 (2005). At sentencing, this Court followed the mandates of Blakely and Ameline that were in Response to Government's Objections to Presentence Report; and Defendant's Sentencing Memorandum. Each of the pleadings asserted that any upward adjustments or departures made to Mr. Schroeder's sentence must be based on facts admitted by him in pleading guilty or found by a jury beyond a reasonable doubt, pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 $6,950 during 1998, but willfully failing to file an income tax return with the Internal Revenue Service. Prior to his sentencing hearing on October 26, 2004, Mr. Schroeder filed the following pleadings with this Court: Defendant's Objections to the Draft Presentence Report; Defendant's

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Booker, which made the Sentencing Guidelines advisory. On April 4, 2005, the Government filed an Appeal Memorandum and Motion for Remand addressing whether the case should be remanded for resentencing. Defense counsel thereafter filed a Response to Plaintiff's

Memorandum and Motion for Remand, agreeing that remand was appropriate but disagreeing with the Government's proposition that Mr. Schroeder may be sentenced to a higher sentence

6 7 8 9 10 11 12 13 14 15 16 17 18 19 required resentencing. Booker, 125 S. Ct. at 769. Additionally, in rendering its decision, the 20 21 22 23 24 25 whether resentencing is warranted or whether it will instead be sufficient to review a sentence 26 27 28 for reasonableness may depend upon application of the harmless-error doctrine." Id. Booker Court was primarily concerned with the impact of the Federal Sentencing Guidelines on a defendant's Sixth Amendment right, which is not likewise afforded to the Government. The Court, therefore, placed greater emphasis on resentencing where a Sixth Amendment violation occurred. In fact, the Court stated that "in cases not involving a Sixth Amendment violation, Government to seek resentencing in this case, as it is still on direct review. However, that does not necessarily mean that Mr. Schroeder should, in fact, be resentenced, as the Booker Court did not intend for all defendants sentenced pre-Booker to be resentenced. Instead, it assumed reviewing courts would "apply ordinary prudential doctrines" when deciding which cases A. Whether Mr. Schroeder Should Be Resentenced Is Within This Court's Discretion. There can be no dispute that the Supreme Court's holding in Booker allows the than the one originally imposed by this Court. In an Order dated April 22, 2005, the Honorable Judge Wake remanded the case to this Court for further proceedings. This case is now set for a Resentencing Hearing before this Court on January 12, 2006, at 2 :00 p.m. II. LAW AND ARGUMENT

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The Ninth Circuit has also provided guidance on what procedure is appropriate in cases such as this. Although addressing a defendant's right to remand, rather than the Government's, in United States v. Ameline (Ameline II), 409 F. 3d 1073 (9th Cir. 2005) (en banc), the Court adopted a "limited remand" procedure where a pre-Booker sentence is called into question in light of that decision. The Court stated, "[w]e conclude that the best way to deal with this

6 7 8 9 10 11 12 13 14 15 16 to determine whether it would have imposed a different sentence had it understood that the 17 18 19 20 21 22 reasonable in light of the mandates of Booker. 23 24 25 26 27 28 unreasonable, a resentencing is appropriate. If, on the other hand, the Court determines that the sentence is reasonable, no further proceedings are necessary. If the Court determines the sentence is Guidelines were advisory." The Court further stated that the "orderly development of the law under § 3553(a)(2) would be furthered by the district court's addressing the reasonableness issue in the first instance." Id. These holdings clearly indicate that the proper procedure to follow in a case such as this is to first determine whether Mr. Schroeder's sentence is the court known that the Guidelines were advisory." Id. at 1079. Additionally, in United States v. Edwards, 2005 WL 3487659, *1 (9th Cir. Dec. 20, 2005) (unpublished opinion attached as Appendix A), the Ninth Circuit reiterated its holding in Ameline II, stating that "where, as here, a district court believed itself bound by pre-Booker law, we should remand for the district court unusual situation is to follow the approach adopted by our colleagues on the Second, Seventh, and D.C. Circuits and ask the person who knows the answer, the sentencing judge. Rather than affirm a sentence that was unconstitutional and may have been prejudicial, we elect to remand to the district court to answer the question whether the sentence would have been different had

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B. Mr. Schroeder's Original Sentence is Reasonable Under the Mandates of Booker and Should, Therefore, Be Affirmed. Reviewing the facts of the instant case indicates that a resentencing is not necessary or

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 term when it could have sentenced Mr. Schroeder to prison, it is logical to assume that his 20 21 22 23 24 25 26 27 28
The fact that this Court imposed a sentence at the lower end of the statutory range shows that it did not feel itself "constrained" from imposing a higher sentence by Blakely, as the Government suggests in its Appeal Memorandum. (Memorandum at 4). 2 As discussed more fully in subsection C, Booker reiterated that facts used to impose a sentence above the statutory maximum must be admitted by the defendant or found by a jury beyond a reasonable doubt. 125 S. Ct. at 756.
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appropriate. First, it is worth noting that Mr. Schroeder's original sentence did not violate the Sixth Amendment, as his sentence was not enhanced based upon facts found by a judge, rather than a jury, by a preponderance of the evidence. The holding of Booker, therefore, does not require a resentencing, but only makes it a possibility. Second, Mr. Schroeder's sentence is reasonable when compared to the sentence this Court could impose post-Booker. Using facts admitted by him in pleading guilty, Mr.

Schroeder's Base Offense Level was 6, rendering a sentencing range of 0-6 months imprisonment or a maximum term of 3 years probation. Rather than imposing a prison

sentence, this Court felt it appropriate to sentence Mr. Schroeder to a term of three years probation and impose the maximum fine of $5,000. 1 After Booker, however, this Court may sentence Mr. Schroeder to up to one year imprisonment on each count or five years probation, pursuant to 26 U.S.C § 7203. 2 Thus, there is not a significant difference between the two prison sentences, but only six months. Additionally, given that this Court imposed a probation

sentence would not have been significantly different under advisory Sentencing Guidelines. Considering Mr. Schroeder's sentence under the factors of 18 U.S.C. § 3553(a) also demonstrates that his sentence is reasonable. The Booker court, in making the Sentencing

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Guidelines advisory, stated that a sentencing judge is still required to consider the advisory guideline range, but must also consider factors listed in 18 U.S.C. § 3553(a). 125 S.Ct. at 757. Presumably, a sentence that is appropriate in light of the statutory factors would satisfy the appellate standard of reasonableness. Id. at 745. An examination of these factors shows that Mr. Schroeder's original sentence is reasonable and should not be changed.

6 7 8 9 10 11 12 13 14 15 and take responsibility for his illegal conduct. Thus, it is fitting that Mr. Schroeder's offense 16 17 18 19 20 21 22 23 24 25 can look at his conduct over the past 15 months since his sentencing as some evidence of 26 27 28 whether his original sentence is reasonable. That conduct clearly demonstrates that the original sentence imposed did achieve its purpose of respect for the law, deterrence and punishment. necessary" to achieve the purposes of the statute, among them the promotion of respect for the law, the provision of a just punishment for the offense, the adequate deterrence of criminal conduct, and the protection of the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(2). The procedural posture of Mr. Schroeder's case is highly unique in that this Court was punished by a probationary term, as are a significant percentage of less serious tax offenses, particularly misdemeanor offenses like Mr. Schroeder's. The sentencing statute also requires that the sentence be "sufficient, but not greater than inappropriate conduct deserving of a probationary term and a substantial fine, the nature of his offense is not particularly heinous or destructive. Significantly, Mr. Schroeder had no criminal record before pleading guilty to the instant offense. By all accounts, he was a contributing member of society before his offense, and has taken steps since his sentencing to obey all laws The sentencing statute first requires a court to take into account "the nature and circumstances of the offense and the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1). While Mr. Schroeder acknowledges that his failure to file tax returns was

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According to Mr. Schroeder's Probation Officer, Catherine Wertz, he has remained law-abiding since his conviction, has complied with all terms of probation, paid all fines ordered by the Court, continues to pay his monthly probation fees in a timely manner, and is punctual for all probation meetings. In Ms. Wertz's opinion, Mr. Schroeder is at a low risk to re-offend. In fact, the probation department was in the process of filing paperwork to terminate Mr.

6 7 8 9 10 11 12 13 14 15 Public Accountant Phil Martin, Mr. Schroeder is now completely up-to-date on payment of his 16 17 18 19 20 21 22 23 24 25 26 27 28 light of Mr. Schroeder's excellent performance on probation and the effort he has made to correct his previous conduct with respect to his payment of taxes, it is clear that this Court made the correct decision by imposing a maximum term of probation. taxes and filed all tax returns for years 1999-2004. He is prepared to file his tax returns for the years underlying his convictions (1997 and 1998), but has been advised by counsel to refrain from doing so until this case is finally disposed of. Additionally, Mr. Schroeder continues to pursue a business in real estate development which, thus far, has proven very successful. In he can remain a law abiding citizen and a productive member of society. Lastly, Mr. Schroeder's conduct since his conviction and sentencing in October of 2004 demonstrates that his sentence is reasonable under the circumstances. According to Certified Schroeder's probation term early, but stopped when it learned that he may be resentenced. A term of imprisonment would therefore prove to be counterproductive and more harsh than necessary to protect society. The sentence imposed sufficiently punished Mr. Schroeder for his illegal conduct that occurred between seven and eight years ago, yet allowed him to prove that

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C. If This Court Finds That Mr. Schroeder Should Be Resentenced, the Same Sentence or One Substantially Similar To the Original Sentence is Appropriate. It is Mr. Schroeder's position that the court should exercise its discretion and find that his original sentence is reasonable under the sentencing considerations now mandated by Booker, rendering a resentencing unnecessary. However, if this Court determines that Mr.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 suggestion, it does not necessarily follow that this Court may now use any fact presented by the 20 21 22 23 24 25 Amendment. Id. at 746. Affirming its previous decisions in Jones, Apprendi and Blakely, the 26 27 28 Court, in an opinion by Justice Stevens, answered in the affirmative, stating that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum Government to increase Mr. Schroeder's sentence. In Booker, the Court addressed the issue of whether application of the Federal Sentencing Guidelines, which allowed the imposition of an enhanced sentence based on a judge's determination of a fact not found by a jury or admitted by the defendant, violates the Sixth (1999), Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Additionally, by rendering the Guidelines advisory, a judge is arguably free to impose a sentence within the statutory maximum sentence without additional fact-finding by a jury beyond a reasonable doubt. However, contrary to the Government's Schroeder should be resentenced in light of Booker, the same or a substantially similar sentence is appropriate for the same reasons discussed in subsection B. D. Any Fact Necessary to Impose a Sentence Above the Statutory Maximum Must Be Found By a Jury Beyond a Reasonable Doubt. There is no doubt that Booker carved relevant provisions out of the Sentencing Guidelines that directly conflicted with the mandates of the Sixth Amendment, as previously interpreted by the Supreme Court in Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215

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authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 125 S. Ct. at 756. In an opinion by Justice Breyer, the Court went on to address the issue of whether the unconstitutional provision of the Guidelines, requiring a judge to consider the nature and circumstance of the offense and the history and characteristics of the defendant, and render a sentence within the

6 7 8 9 10 11 12 13 14 15 16 any sentence above the statutory maximum must be based upon "facts established by a plea of 17 18 19 20 21 22 beyond a reasonable doubt," 530 U.S. at 490, nor does it change the Court's subsequent holding 23 24 25 26 27 28
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applicable guideline range, can be severed to comply with the Sixth Amendment. 3 Id. Again, the Court answered in the affirmative, stating that by extracting that provision, the Guidelines are rendered advisory, rather than mandatory. Id. at 767. As such, while a sentencing judge must consult the Guidelines and take them into account when sentencing, the judge is no longer bound by the Guidelines and their fact-finding requirement. Id. Admittedly, the procedures and constitutional requirements to be imposed during federal sentencings are not yet clear after Booker, and will likely not be for some time. However, even with advisory Guidelines and consideration of the sentencing factors found in 18 U.S.C. § 3553(a),

guilty," "admitted by [Mr. Schroeder] or proved to a jury beyond a reasonable doubt." Booker, 125 S. Ct. at 756. The holding in Booker does not change the underlying principle established in Apprendi that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved

in Blakely that the "statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the

The Court also addressed the provision of the Sentencing Guidelines setting the standard of review on appeal. However, because that provision is not now relevant to Mr. Schroeder's case, it will not be fully discussed.

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defendant." 124 S. Ct. at 2537. Indeed, since its holding in Booker, the Supreme Court reiterated that "any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, in the absence of any waiver of rights by the defendant." See Shepard v. United States, ___ U.S. ___, 125 S. Ct. 1254, 1256 (2005) (holding that the Sixth Amendment required a jury to determine whether the defendant's prior

6 7 8 9 10 11 12 13 14 15 16 U.S.C. § 7203, Mr. Schroeder's admissions render a statutory maximum sentence of one year 17 18 19 20 21 22 sentence based upon any fact it deems appropriate, without that fact first being admitted by Mr. 23 24 25 26 27 28 Schroeder or found by a jury beyond a reasonable doubt. Specifically, the Government's request that this Court impose enhancements under the advisory Sentencing Guidelines based upon its allegation that Mr. Schroeder's offense involved a $130,289 tax loss and use of sophisticated concealment necessarily requires this Court to make factual determinations. To the extent such imprisonment for each count. Thus, without additional facts found by a jury beyond a reasonable doubt, the maximum sentence Mr. Schroeder could receive for each count is one year imprisonment, and the minimum is a term of probation (which he originally received). The Government is therefore incorrect in suggesting that this Court may now impose a $6,950 during 1998, but willfully failing to file an income tax return with the Internal Revenue Service. Under the Advisory Sentencing Guidelines, those admissions render a base offense level of 6, which, coupled with Mr. Schroeder's Criminal History Category of I, renders a sentencing range of 0-6 months imprisonment or a maximum term of three years probation. Pursuant to 26 convictions were violent felonies for the purpose of enhancing the sentence under the Armed Career Criminal Act). In the instant case, Mr. Schroeder admitted to the facts alleged in the Information; that is, receiving a gross income in excess of $6,800 during 1997, and a gross income in excess of

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factual findings enhance Mr. Schroeder's sentencing beyond the statutory maximum, they must be found by a jury beyond a reasonable doubt, and Mr. Schroeder is entitled to a sentencing hearing before a jury. See Shepard, 125 S.Ct. at 1262. III. CONCLUSION For the foregoing reasons, Mr. Schroeder respectfully requests this Court to find Mr.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COPY of the foregoing mailed this 10th day of January, 2005, to: ORIGINAL and ONE COPY of the foregoing filed this 10th day of January, 2006, with Clerk of the Court United States District Court District of Arizona 401 W. Washington Phoenix, AZ 85003 ______________________________________ Michael D. Kimerer Amy L. Nguyen Attorneys for Defendant Schroeder Guidelines, mandatory factors of § 3553(a), and Mr. Schroeder's conduct while on probation for the past fifteen months. RESPECTFULLY SUBMITTED this 10th day of January, 2006. KIMERER & DERRICK, P.C. Schroeder's original sentence reasonable under the mandates of Booker and deny the Government's request for a resentencing. However, in the event of a resentencing, Mr.

Schroeder requests this Court to impose the same sentence or one substantially similar to that originally imposed by this Court, as it is still reasonable in light of the advisory Sentencing

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Albert L. Kleiner Special Assistant United States Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004 Attorney for Plaintiff

By:_________________________ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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